Proof of Penetration Essential for Sustaining Aggravated Penetrative Sexual Assault Conviction: Delhi HC

The Delhi High Court has re-established the critical evidentiary boundary between sexual touching and penetration, ruling that a conviction for aggravated penetrative sexual assault cannot be sustained without specific proof of insertion into the victim's private parts. In a definitive clarification of the Protection of Children from Sexual Offences Act, 2012, the Court held that while the testimony of a minor child is of paramount importance, it must clearly establish the essential ingredients of the charged offence to warrant the maximum statutory penalties.

A bench of Justice Madhu Jain heard the criminal appeal challenging a trial court order that had sentenced the appellant to twenty years of rigorous imprisonment for allegedly inserting a finger into a five-year-old child's private parts. The Court examined whether the evidence on record met the threshold for 'penetrative' assault or remained within the realm of 'sexual assault' involving physical contact.

Court's Rationale on Penetrative Ingredient

The Court observed that although the minor victim identified the appellant and described sexual contact, her court testimony focused on 'touching' and being hurt by a 'nail' rather than penetration. The Bench noted that the Trial Court erred by treating an answer regarding the location of a nail scratch as definitive proof of insertion.

The Court, in its reasoning, observed: "The distinction between the aforesaid offences lies in the nature of the act established by the prosecution. While insertion of a finger into the vagina or urethra, even to the slightest extent, would attract Section 3(b), touching of the private part of a child with sexual intent, without proof of penetration, would fall within Section 7. The aggravating circumstance of the child being below twelve years of age is separately recognised under Sections 5(m) and 9(m)."

Regarding the medical evidence, the Court found that the lack of internal examination and the absence of external injuries created a void that the oral testimony could not bridge to the level of 'beyond reasonable doubt' for the charge of rape.

The Court has the following directions:

"The conviction of the appellant under Section 376AB Indian Penal Code, 1860 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 is hereby set aside, and he is acquitted of the said offences. Consequently, the sentence of rigorous imprisonment for twenty years, along with the fine of Rs.10,000/- and the default sentence imposed under Section 6 of the Protection of Children from Sexual Offences Act, 2012, is also set aside. However, the conviction of the appellant under Section 9(m), punishable under Section 10 of the Protection of Children from Sexual Offences Act, 2012, is upheld. The sentence of rigorous imprisonment for five years... is maintained. The directions concerning compensation awarded to the prosecutrix under the impugned order on sentence shall remain undisturbed."

Background

The case originated from an FIR registered in 2021 where the mother of the 5-year-old prosecutrix alleged that their neighbor had sexually assaulted the child while she was playing. The Trial Court convicted the appellant under Section 376AB, 354A, and 506 of the Indian Penal Code, 1860 and Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012, primarily relying on the child's statement during investigation which mentioned insertion.

On appeal, the High Court analyzed precedents including Ram Preet v. State ( "2024:DHC:9936-DB": 2024 CaseBase(DEL) 2934), Jeetu Ranjeet v. State (NCT of Delhi) ( "2025:DHC:8851": 2025 CaseBase(DEL) 6096), and Hamid Khan v. State (NCT of Delhi) ( "2026:DHC:78": 2026 CaseBase(DEL) 2172), which established that when evidence proves touching but not penetration, the conviction must be scaled down. The Court also cited Phool Singh v. State of Madhya Pradesh ( "(2022) 2 SCC 74": 2021 CaseBase(SC) 405) regarding the reliability of a victim's sole testimony and Attorney General for India v. Satish ( "(2022) 5 SCC 545": 2021 CaseBase(SC) 1706) regarding the definition of sexual intent. Finding that the foundational facts for penetration were missing, the Court acquitted the appellant of the more serious charges but upheld the conviction for aggravated sexual assault, maintaining a five-year sentence.

Case Details:
Case No.: CRL.A. 269/2024
Case Title: Vishnu Prasad V. State Of Nct Of Delhi
Appearances:
For the Petitioner(s): Mr. Harsh Prabhakar, Mr. Dhruv Chaudhary, Ms. Sakshi Gupta, Mr. Shubham Sourav and Mr. Vijit Singh, Advocates.
For the Respondent(s): Ms. Meenakshi Dahiya, APP with Ms. Vanshika Singh, Ms. Apoorva Khosla, Advocates for State; Ms. Astha and Ms. Megha Singh, Advocates for Prosecutrix.

Source: 2026 CaseBase(DEL) 7514